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IMPLICATIONS OF IN RE HORAN, COMMONWEALTH’S ATTORNEY — FOR FOREIGN NATIONALS AND U.S. CITIZENS ALIKE

Yesterday’s issuance of a rare writ of mandamus by the Supreme Court of Virginia comes on the heels of a January 3 ruling by Fairfax Circuit Court Judge Leslie M. Alden. Judge Alden had found that the Commonwealth had violated certain rights afforded to foreign nationals by the Vienna Convention of 1963, specifically the right of such persons to be permitted to contact their embassies when they are arrested for crimes in a foreign jurisdiction.

Here, Dinh Pham, a Vietnamese national, faces capital murder charges in Fairfax for the murders of a woman and her young daughter. Police sent a notice by facsimile to the Vietnamese Embassy, but apparently did not notify Pham of his right to contact the embassy. Judge Alden found that the police had accordingly violated Pham’s rights; as an appropriate remedy, she barred the Commonwealth from seeking the death penalty.

The 12-page ruling from the Supreme Court directs the judge to permit the prosecutor to ask the jury to impose the death penalty. Discretion on which charges to bring and which lawfully authorized penalty to seek is vested in the prosecutor, and the judge cannot interfere with that discretion.

Here are some thoughts on the decision and its implications:

1. Yesterday’s order is more about criminal procedure and the right to mandamus than it is about the Vienna Convention or the rights of foreigners. The court appears to assume without deciding that the police department’s conduct did, in fact, violate Pham’s rights. The bulk of the decision centers on questions of whether the death penalty can be proscribed before the trial is concluded, and whether the extraordinary remedy of mandamus is the correct procedure.

2. The writ does not, of course, mean that Pham will be sentenced to death. Nor does it mean that he will be powerless to ask that he not be sentenced to die. I can conceive of at least four occasions in which he can properly ask that his life be spared:

A. He can ask the jury at his trial to find him not guilty.

B. If the jury convicts him, he can ask the same jury in the penalty phase of the trial to be sentenced to life in prison instead of to death.

C. Failing either of these, he can ask the trial judge (who may be the same judge who ruled in his favor on January 3) to apply the Convention to bar the death penalty.

D. Assuming the judge declines to do that, he can ask the judge to exercise her own discretion to find that the death penalty is not appropriate.

Even this list does not include such other available remedies as appealing a conviction (Supreme Court consideration of death sentences is automatic), filing habeas corpus petitions in the state or federal courts, or asking the Governor for a pardon or a commutation.

3. This decision is based in part on the separation of powers doctrine. The court notes that the executive branch (here, the Commonwealth’s Attorney) gets to decide which charges to bring to trial and what penalty to seek. The judicial branch cannot intervene at this stage of the trial to prevent the exercise of that discretion. The ruling does not prejudge the case, or prevent the use of any of the remedies set forth above by Pham’s lawyers.

4. While I am not going to get deep into the realm of speculation, I will point out that what happens in this case may have implications for American citizens abroad. As with most other aspects of life, we will find ourselves being treated by others in much the way we treat them. Accordingly, there are probably foreign policy concerns in this issue.

5. The Supreme Court of the United States has recently accepted for argument and decision a similar claim by a foreign national, so this very issue will be addressed on an even bigger stage in the near future. That case, which also arose in northern Virginia , involves a Honduran native.

6. Yesterday’s ruling was not an appeal. Indeed, the order itself notes that the Commonwealth was powerless to appeal the judge’s ruling, thus furnishing the Supreme Court with the legal basis to consider the petition and issue the writ. (Mandamus is not a substitute for appeal, and if a party has a right to appeal a decision, mandamus is not available to him.) The petition was filed pursuant to the Supreme Court’s original jurisdiction to hear cases involving lower courts that allegedly exceed their authority. I have not seen any statistics on the issuance of such writs, but it would not be an exaggeration to describe them as exceedingly rare.

As of about 1:00 pm on Friday, January 20, the order granting the writ has not been posted on the Supreme Court’s web site. If any of my readers want a copy, they may contact me at emmert@virginia-appeals.com , and I’ll e-mail a copy.

On Thursday, the Supreme Court of Virginia intervened in a capital murder prosecution at the request of the Commonwealth’s Attorney for Fairfax County . The trial judge had prohibited the prosecutor from seeking the death penalty against Dinh Pham, citing provisions of the 1963 Vienna Convention on Consular Relations. On Thursday, the Supreme Court granted the prosecutor’s request for a writ of mandamus, essentially requiring the judge to permit the case to go forward with the possibility of the death penalty.

The writ, under the caption In re Horan, Commonwealth’s Attorney, is not yet posted on the court’s web site; readers of this site who are interested may obtain a copy by contacting me at emmert@virginia-appeals.com .